TO SUE OR NOT TO SUE. PRETTY GOOD QUESTION.

Q – When does a trial lawyer not go to trial?

A – When our client’s case settles before trial.

Q – How does a case get settled?

A – Some cases do not settle before trial, and the case needs to be heard and decided by a judge and jury. Many cases settle at the time of trial, often during the trial itself. But there are times when your injury attorney will achieve a case settlement by participating in what’s called ADR, or Alternative Dispute Resolution.

ADRAward

So, to sue or not to sue is indeed a pretty good question. The lawsuit can be underway at the time of the ADR; or, the success or failure of the ADR can determine whether a lawsuit is even necessary.

In New York and other states, an entire industry has been created for ADR. There are companies that provide the forum and staff for mediations and arbitrations, which are the two main types of ADR. The parties pay the ADR company for their services, and the ADR company pays the mediators and arbitrators. Continuing legal education programs are even offered for lawyers, so that they can provide the best possible representation for their clients when a mediation or arbitration take place.

Briefly, Alternative Dispute Resolution refers to voluntary methods by opposing parties to resolve their legal dispute out of court. ADR can either be in the form of a mediation or arbitration. The neutral mediator or arbitrator is often a retired judge. If the neutral was a sitting judge who had a solid reputation for settling cases, it is likely that he or she will be a popular in-demand neutral.

A mediation is usually non-binding, wherein the mediator acts as a neutral “voice of reason,” striving to convince the opposing parties to settle. The mediator works with the parties to bridge the gaps between them as to the assignment of fault and the amount of monetary damages. Clients may attend the mediation. If both sides can’t agree on a settlement amount, the mediation process stops and the parties return to court proceedings to resolve the case. Under mediation rules, nothing said at the mediation can be used at trial.

Compromise

An arbitration is usually binding, subject to its own set of rules as well as court rules. The arbitrator renders a decision after the parties present their cases. The rules of evidence and the format of the arbitration itself are usually less formal than a court trial; and, there is no jury. Clients and other witnesses may testify.

After the evidence and arguments are submitted, the arbitrator issues a decision. Most decisions are non-appealable, which means that the arbitrator’s decision is final. Both sides agree in advance to be bound by that decision. There are variations, including special rules for uninsured motorist and under-insured motorist claims, but the arbitration ADR method usually ends the case for all purposes.

While a settlement or final determination may seem like a good thing (and it usually is), it is not a guaranteed outcome of an ADR proceeding. The pros and cons need to be weighed before agreeing to participate. For example, the ADR proceeding will reveal both sides’ strengths and weaknesses. Each side will have learned potentially important information to use at trial if the ADR proceeding does not settle the case.

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When choosing a personal injury lawyer, you should ask if he or she is experienced in Alternative Dispute Resolution to ensure that your lawyer has all the tools available to recover the highest monetary award for you.

For a complimentary case analysis, please call us at (800) 427-9546.

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